Return to Contents The Right To Trial By Jury Mark Lewis The case of Att.Gen. v Corcoran [1]highlights the herent in providing the Police Court Magistrate with the power to commit an accused to the Royal Court following conviction, without providing for the proper classification of criminal offences. The Police Court (Miscellaneous Provisions) (Amendment No. 5) (Jersey) Law 1996 enables the Police Court Magistrate to conduct a summary trial, following a "not guilty" plea, and then following conviction to remand or commit the accused to the Royal Court for sentencing. The Magistrate must satisfy himself that, after having examined the accused’s record or having regard to any other fact brought to his knowledge, there should be imposed on the accused a penalty or penalties in excess of his powers. In the case of Att.Gen. v Corcoran the Royal Court criticised the procedure adopted by the lower Court. The accused was charged with both grave and criminal assault and robbery. Both the charges arose out of the same incident. The accused pleaded guilty to the grave and criminal assault charge but not guilty to the charge of robbery. The accused was committed to the Royal Court in connection with the grave and criminal assault charge. However, the Magistrate dealt with the robbery charge by way of summary trial. The Royal Court criticised this procedure in two ways:- 1. The Court stated that: "in our judgment the power [under Article 4A of the above law] was conferred on the Police Court to meet the situation which can arise where the Court, exercising its function as a Court of summary jurisdiction and intending to deal with the matter itself, becomes appraised at the end of the hearing of facts which lead it to the conclusion that its powers are insufficient to deal with the case. The power should not be exercised in cases involving serious alleged offences where there is no doubt from the start of the hearing that the case must fall to be dealt with in this Court. To exercise the power in cases of serious alleged offences deprives the accused of his right of trial by jury". 2. The Court went on to say: "in this case, the error was compounded by convicting the accused of attempted robbery while at the same time remanding him for trial on the charge of grave and criminal assault. The result was that when Corcoran appeared before this Court he had been convicted of an attempted robbery but it was open to him to plead not guilty to the indictment which charged him with grave and criminal assault. Had such a plea been entered, Corcoran would have stood trial before the Assizes for the offence of grave and criminal assault having been convicted by the Police Court of an attempted robbery arising out of the very same incident". The Court could have gone on to say, but did not, that as a matter of principle, where an accused faces multiple charges, he should be dealt by a single Court. In this way the sentencing judge can obtain a better view of all outstanding matters together and deal with them appropriately. Under section 38 of the Magistrates Courts Act 1980 the magistrates of the courts of England and Wales have a similar power to that recently conferred upon the magistrate in Jersey. However, the power to commit to the Crown Court for sentencing following conviction only applies when the accused has been charged with an offence triable either way. In England and Wales criminal offences are classified into three major categories: summary offences, triable either way offences and indictable offences. Summary offences must be tried before the Magistrates Courts where the case is determined by justices of the peace who are judges of both law and fact. Indictable offences must be heard before a judge and jury in the Crown Court. The judge determines matters of law, evidence and procedure, whilst the jury, consisting of lay men and women, determines matters of fact. Either way offences can be tried in either forum. The most serious offences (e.g. murder, manslaughter, robbery, rape, incest, causing grievous bodily harm with intent to do so) are triable only on indictment. Offences of medium gravity, especially those the gravity of which varies greatly depending on the facts of the particular case, are triable either way (e.g. theft, handling stolen goods, obtaining property by deception, most forms of burglary, non-aggravated criminal damage, assault causing actual bodily harm, unlawful wounding and indecent assault). The least grave offences are triable only summarily. All common law offences are indictable only. Whether a statutory offence falls into one category or another is determined by either the particular statute creating the offence or provision made under section 17 of the Magistrates Courts Act 1980. Where the accused is faced with an offence triable either way he can opt for trial by jury should he so wish. If the accused does not avail himself of this right the Magistrate has a discretion as to the appropriate forum. In England and Wales, as all offences are so categorised, there is no possibility of an accused being denied the right of trial by jury for anything other than a trivial offence which will carry at the most a maximum of six months’ imprisonment. At present in Jersey the Magistrates are placed in a difficult position and mistakes will inevitably be made as in the Corcoran case. It appears to me that the only way to prevent further injustice is to categorise offences in Jersey along the lines of the law of England and Wales. This leads naturally into the whole issue of an accused’s right to trial by jury. As the Royal Court rightly stated, to exercise the power of summary trial established in the above law, in cases of serious alleged offences, is to deny the accused his right to trial by jury. The right to trial by jury is precious. Rose L.J. recently gave a ringing endorsement of trial by jury in and Barclay [2] : "Trial by jury is one of the cornerstones of our democracy. Lord Devlin described it as the ‘lamp which shows that freedom lives’ (Trial by Jury). Its restoration or adoption by countries in Eastern Europe has symbolised in recent years their establishment of democracy." Yet here in Jersey there are a number of unjustifiable restrictions placed on this right. Not only is there the restriction highlighted by the Corcoran case but there is no right to trial by jury in relation to statutory offences. Historically offences in Jersey have been divided into two separate classes: commnces, called "crimes" and "délits" (the latter being less serious in nature) and statutory offences called "contraventions". Two cases, namely Att.Gen. v Pennington [3]and Att.Ge Weston [4]are binding authority that an accused has no right to trial by jury on committal to the Royal Court, where charged with a statutory offence. The accused will be tried by one judge of law, the Bailiff or Deputy Bailiff, and two judges of fact. Unlike the members of a jury, Jurats are not drawn at random from members of the community to serve for a short period. Jurats, although laymen and women, are permanent judges appointed by an electoral college. Interestingly, anyone committed by the Magistrate’s Court for a common law offence can real by judge and Jurats but has no right to such a trial [5] . There is no obvious justification for the distinction between common law and statutory offences. It appears to be the result of an historical accident. By apparent oversight Article 1 of the Loi (1864) réglant la procédure criminelle only provides for the right to elect trial by jury for crimes and délits. The problem exists in its most acute form in connection with drug offences. Drug related offences are created under the Misuse of Drugs (Jersey) Law 1978, as amended. Accordingly an accused committed to the Royal Court on charges relating to the misuse of drugs has no right to trial by a jury. Drug trafficking offences carry very heavy sentences and are the most common form of serious offence to come before the Royal Court. It is submitted that here lies an obvious injustice. Finally there are certain circumstances where an accused can be charged with either a statutory or a common law offence. The recent creation of the statutory offence of causing death by dangerous driving now gives the prosecutor the choice of charging that offence (no trial by jury) or manslaughter (trial by jury). Is not the current system open to abuse? May not the person who brings the charge be tempted to bring it under a statutory provision in order to avoid the possibility of a trial by jury? Would it not be better to remove the temptation in the first place? Mark Lewis is an advocate of the Royal Court and is an associate at Bailhache Labesse, 14-16 Hill Street, St. Helier, Jersey JE1 1BD. |